Citation Nr: 1519572
Decision Date: 05/07/15 Archive Date: 05/19/15
DOCKET NO. 11-09 941 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia
THE ISSUES
1. Entitlement to service connection for right ear hearing loss.
2. Entitlement to service connection for hypertension.
3. Entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide exposure.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
M. Purdum, Counsel
INTRODUCTION
The appellant served on active duty from January 1970 to August 1971.
These matters come before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the claims on appeal.
The appellant was scheduled to appear before the Board at the RO in Atlanta, Georgia, on February 5, 2015; however, by a January 2015 statement, he cancelled his hearing.
The issue of entitlement to service connection for peripheral neuropathy, to include as secondary to herbicide exposure, addressed in the REMAND portion of the decision below, is REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The probative evidence of record demonstrates that the appellant is not shown to have a current diagnosis of right ear hearing loss that meets the criteria for qualification as a disability for VA purposes.
2. The probative evidence of record demonstrates that hypertension was not manifest during service or within one year of separation from service, and is not attributable to service.
CONCLUSIONS OF LAW
1. The requirements for service connection for right ear hearing loss are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.385 (2014).
2. The requirements for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
VA is required to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5101, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). The notice requirements were met in this case by a letter sent to the appellant in March 2009, prior to the initial unfavorable decision. The letter advised the appellant of the information necessary to substantiate his claims, and of his and VA's respective obligations for obtaining specified different types of evidence. The letter also explained how disability ratings and effective dates are determined. 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183 (2002), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
The appellant's service treatment and personnel records are associated with the claims file, as well as his identified and authorized private treatment records. The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.
In McLendon v. Nicholson, 20 Vet App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81.
The appellant was afforded an audiological QTC examination in May 2009. As will be discussed below, based on this examination, there is no evidence of right ear hearing loss that meets the criteria for qualification as a disability for VA purposes. Thus, there need not be further consideration as to whether any resultant etiological opinion was adequate. The appellant has not been afforded a VA examination with respect to his claim of entitlement to service connection for hypertension. As discussed below, while the appellant has been diagnosed with hypertension, there is no evidence establishing that an event, injury, or disease occurred in service and a VA examination pursuant to McLendon is thus not required. Further, the appellant, as discussed below, contends on his own behalf that his current hypertension is related to service. It appears that the sole basis for his contention is that he has no family history of hypertension. However, "VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).
In the circumstances of this case, additional efforts to assist or notify the appellant would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duties to inform and assist the appellant at every stage of this case. Therefore, the Board may proceed to consider the merits of the claims.
Service Connection - Pertinent Laws and Regulations
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A.
§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).
Hypertension as well as sensorineural hearing loss, as an organic disease of the nervous system, are chronic diseases as listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic diseases, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if: (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Right Ear Hearing Loss
The threshold requirement for the grant of service connection, in essence, the first requirement for direct service connection, is that the disability claimed must be shown present. 38 U.S.C.A. § 1110. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. Id. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007).
According to VA standards, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385.
The appellant was afforded an audiological QTC examination in May 2009. He demonstrated puretone thresholds, in decibels, of 20, 15, 15, 25, 30, for the right ear, measured at 500, 1000, 2000, 3000, and 4000 Hertz, respectively. Right ear speech recognition was 100 percent. As the appellant did not demonstrate an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater, or auditory thresholds for at least three of these frequencies of 26 decibels or greater, or speech recognition scores using the Maryland CNC Test of less than 94 percent, his right ear hearing loss does not meet the criteria for qualification as a disability for VA purposes. Id.
In this case, there is no evidence showing a diagnosis of right ear hearing loss that meets the criteria for qualification as a disability for VA purposes. As there is no evidence establishing a diagnosis of right ear hearing loss, the first requirement of direct service connection, there cannot be a discussion as to whether the second and third requirements of direct service connection, evidence of disease or injury in service and a relationship or nexus between the current disability and any injury or disease during service, respectively, are met. Further, without evidence establishing a diagnosis of right ear hearing loss, there cannot be a discussion as to whether there is evidence of right ear hearing loss symptoms continuously since service or right ear hearing loss manifest to a compensable degree within one year of separation from service.
In light of the foregoing reasons and bases, the Board finds that the preponderance of evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56. Accordingly, the claim of entitlement to service connection for right ear hearing loss must be denied.
Hypertension
The appellant asserts, in an April 2009 statement, that his hypertension is related to service on the basis that he has no family history of hypertension. He does not assert that his hypertension began during service, that he has had symptoms of hypertension continuously since service, or that hypertension was manifest to any degree within one year after separation from service. At the time of his February 2009 claim, he placed the onset of his hypertension as 1988.
The first requirement for direct service connection, evidence of a current disability, has been met. There is no dispute that the appellant has hypertension. His private treatment records dated in February 1996 indicate that he was diagnosed with hypertension. However, the second requirement for direct service connection, evidence of disease or injury in service, is not met; and the appellant does not argue otherwise. His service treatment records are silent for complaint, treatment, or diagnosis of hypertension. As discussed above, the appellant contends on his own behalf that his current hypertension is related to service. It appears that the sole basis for his contention is that he has no family history of hypertension. He has offered no lay statements as to any incident of service giving rise to his current hypertension.
While the first requirement of direct service connection is met, without evidence of disease or injury in service, the second requirement for direct service connection, there cannot be a discussion as to whether the third requirement of direct service connection, evidence of a relationship or nexus between the current disability and any injury or disease during service, is met. In this regard, to be clear, without evidence of disease or injury in service, including any lay statements discussing such, an analysis of the appellant's conclusory opinion that his current hypertension is related to service is not required, as such relates to the third requirement of direct service connection. Further, there is no evidence or assertion that symptoms of hypertension existed continuously since service or that hypertension manifest to a compensable degree within one year of separation from service.
In light of the foregoing reasons and bases, the Board finds that the preponderance of evidence is against the claim and there is no doubt to be resolved. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56. Accordingly, the claim of entitlement to service connection for hypertension must be denied.
ORDER
Service connection for right ear hearing loss is denied.
Service connection for hypertension is denied.
REMAND
The appellant seeks service connection for peripheral neuropathy on the basis that he was exposed to herbicides during service. His service personnel records demonstrate that the appellant has service in the Republic of Vietnam from June 1970 to August 1971 and is thus presumed exposed to herbicides. At the time of his February 2009 claim, the appellant placed the onset of his peripheral neuropathy as 2003. His private treatment records dated in August 2003 indicate that he was diagnosed with peripheral neuropathy after months of complaints of leg pain.
One of the appellant's private treatment providers, in July 2010, recorded that the appellant presented with peripheral neuropathy that the appellant believed was related to herbicide exposure. He diagnosed with appellant with "severe progressive symmetric polyneuropathy, idiopathic vs. AO [herbicides] vs. ?" In August 2010, the private treatment provider diagnosed the appellant with "severe sensory predominant length dependent polyneuropathy thought to be related to AO [herbicides] vs. idiopathic." In March 2011, the private treatment provider diagnosed with the appellant with "severe sensory neuropathy possibly a sequelae of AO [herbicides]. It remains unclear to the Board if the private treatment provider intended to provide an etiological opinion. As he did not discuss the basis for his diagnoses and comments as to herbicides, it appears that he may have simply transcribed the appellant's assertion in the medical record.
In any event, in order for a VA examination to be warranted, the evidence of record must "indicate" that a current disability "may be associated" with a Veteran's military service or due to or aggravated by a service-connected disability. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). This evidentiary requirement is a low threshold. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits; or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Thus, on remand, based on the medical evidence that suggests a nexus, the AOJ should afford the appellant a sufficient VA examination in order to determine the etiology of his peripheral neuropathy.
Accordingly, the case is REMANDED for the following action:
1. Schedule the appellant for a VA examination to determine the etiology of his peripheral neuropathy. The examiner should opine as to whether it is at least as likely as not (at least a 50 percent probability) that the appellant's peripheral neuropathy was incurred in active service, or is otherwise related to active service. The examiner should consider the appellant's conceded exposure to herbicides as well as the onset and type of peripheral neuropathy, early-onset or delayed onset, found present.
The claims file, to include a copy of this Remand, should be made available to the examiner for review in conjunction with the examination, and the examiner should note such review. A complete rationale should be provided for all opinions given. The opinions should be based on examination findings, historical records, and medical principles. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state but, more importantly, explain why an opinion cannot be provided without resorting to speculation, as merely stating this will not suffice.
2. After completion of the above and any additional notice or development deemed necessary, readjudicate the appellant's claim, considering the September 6, 2013, revised regulations regarding early-onset peripheral neuropathy as well as the possibility of establishing service connection by offering medical evidence that a disease was actually caused by military service, including herbicide exposure, under Combee v. Brown, 34 F.3d 1039, 1042 (1994). If the claim is not granted to the appellant's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs